Citation Nr: 0735901
Decision Date: 11/14/07 Archive Date: 11/26/07
DOCKET NO. 02-13 411 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for lumbar strain.
REPRESENTATION
Veteran represented by: Daniel Krasnegor, Esq.
ATTORNEY FOR THE BOARD
James A. DeFrank, Associate Counsel
INTRODUCTION
The veteran had active military service from September 1961
to February 1966.
This matter comes to the Board of Veterans' Appeals (Board)
from a June 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Waco, Texas,
which denied service connection for lumbar strain.
In April 2004, the Board denied the veteran's service
connection claim for a lumbar spine disability. The veteran
appealed the Board's decision to the United States Court of
Appeals for Veterans Claims (Court). In October 2005, the
Court vacated the April 2004 Board decision and remanded the
appeal to the Board for readjudication, taking into
consideration matters raised in the Court order.
In March 2006 and March 2007 decisions, the Board remanded
this issue for further development.
FINDING OF FACT
The veteran's current low back disability was first
demonstrated many years after service and has not been shown
to have had its onset during service or to be in any way
causally related to service.
CONCLUSION OF LAW
The criteria for service connection for a lumbar strain with
underlying degenerative disc disease and lumbar radiculopathy
are not met. 38 U.S.C.A. §§ 1131, 1112, 1154 (West 2002 &
Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to notify & assist
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations impose obligations on VA to provide
claimants with notice and assistance. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in his possession
that pertains to the claim. 38 U.S.C.A. § 5103(a) (West
2002); C.F.R. § 3.159(b)(1) (2007). VCAA notice should be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In a letter dated December 2006, the RO informed the veteran
of the medical and other evidence needed to substantiate his
claim for service connection, what medical or other evidence
he was responsible for obtaining, and what evidence VA would
undertake to obtain. The letter also told him that he could
send any additional information to VA that pertained to his
claim. This notice served to inform him of the need to
submit relevant evidence in his possession.
The Court has also held that that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a service connection
claim. Those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The first three elements of Dingess notice are satisfied by
the December 2006 letter. However, the veteran did not
receive notice about the evidence needed to establish a
rating or notice regarding an effective date. Since the
claim is being denied, no rating is being given and no
effective date is being set. He is, therefore, not
prejudiced by the lack of notice on these elements. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the veteran has been prejudiced thereby).
While there was a timing deficiency with the December 2006
letter because it was provided after the initial evaluation,
the timing deficiency was cured by the re-adjudication of the
claim after the notice was provided. Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006).
VA has thereby met its obligations to notify the veteran of
the medical and other evidence needed to substantiate his
claim and of what evidence he is responsible for obtaining.
Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the veteran in obtaining evidence necessary to
substantiate the claim. The RO has obtained all the evidence
reported by the veteran or suggested by the record.
Specifically, per the March 2007 remand instructions, the
Board obtained from the Social Security Administration copies
of all records pertinent to the veteran's claim for Social
Security disability benefits, including the medical records
relied upon concerning that claim and the actual decision
granting those benefits.
The veteran has not reported any missing VA or private
medical records that need to be obtained, and the Board is
not aware of any such records. Nor is the Board aware of any
additional evidence that could assist the veteran in
substantiating his claim. There is no indication from the
record of additional medical treatment for which the RO has
not obtained, or made sufficient efforts to obtain,
corresponding records.
The veteran also underwent a VA examination in May 2002.
Therefore, the facts relevant to the veteran's claims have
been properly developed, and there is no further action to be
undertaken to comply with the provisions of the VCAA and the
implementing regulations. See Wensch v. Principi, 15 Vet App
362 (2001); see also 38 U.S.C.A. §5103A(a)(2).
Applicable laws and regulations in service connection claims
Service connection will be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110.
Service connection requires competent evidence showing: (1)
the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004);
see also Caluza v. Brown, 7 Vet. App. 498 (1995).
Service connection may also be granted for a disease first
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2007).
Also, certain chronic diseases, including arthritis, may be
presumed to have been incurred during service if manifested
to a compensable degree within one year of separation from
active military service. 38 U.S.C.A. §§ 1112, 1113; 38
C.F.R. §§ 3.307, 3.309.
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Factual Background
In February 1963, the veteran presented with complaints of a
sore back. In early March 1965, the veteran presented with
complaints of back pain. At the end of March 1965, the
veteran again presented with complaints of a back problem
that was worse than before. He was instructed to not lift
over 25 pounds and not to do any truck driving.
In February 1966 the veteran presented with cervical pain.
The treating doctor noted a previous history of a low back
strain. The diagnosis was a possible low grade urinary tract
infection (UTI).
The veteran's separation examination was negative for back
complaints as there was "no significant medical history".
In December 1999, the veteran presented to a chiropractor Dr.
Thomas Konopka with complaints of sharp low back pain
following a lifting accident. The veteran reported being
bent over and twisting at the time of the accident.
An MRI of the lumbosacral spine in January 2000 revealed an
L5-S1 disk protrusion. There was also mild degenerative
desiccation involving all of the lumbar discs.
In a January 2000 letter, Dr. Konopka noted that the veteran
complained of sharp low back pain that occurred after lifting
over 100 pounds. Dr. Konopka noted that the injury was a
bending and twisting injury.
A February 2000 workers compensation consultation from the
Central Texas Spine Institute noted that the veteran had
injured his low back in the military in 1962 but that it
resolved with time. The consultation reported that the
veteran injured his back in December 1999 when he was trying
to position a bucket.
In a January 2001 letter, the Dr. Konopka stated that the
veteran had been treated for various episodes of low back
pain since May 1999. He stated that the veteran's history of
low back pain/injuries dated to his military duty. Dr.
Konopka stated that due to the veteran's long term history of
low back pain and injuries, there was a strong possibility
that his prior health history contributed to the current
health status of his low back.
An April 2001 treatment note from the Central Texas Spine
Institute stated that the veteran had been treated for
injuries he sustained in a work related accident on December
9, 1999. The veteran reported that he was injured while
trying to position a bucket. The veteran began his treatment
on December 10, 1999 and was released on an as needed basis
in May 2000. The veteran reinitiated his treatment plan in
March 2001 following an exacerbation of his condition. The
diagnosis was a lumbar strain with underlying degenerative
disc disease and lumbar radiculopathy.
Electromyography (EMG) studies in April 2001 revealed
evidence of right lumbar radiculopathy.
In an April 2001 attending physician's statement, Dr. Konopka
stated that the veteran initially injured his back in a work
related injury in December 1999 when he lifted a 100 pound
bucket.
At a May 2002 VA examination, the examiner noted that the
veteran received treatment for his back while on active duty.
The veteran presented with complaints of pain, weakness,
fatigability and lack of endurance. However, the veteran
reported that his current back pain began in 1999 while
driving a tractor trailer. The veteran experienced a lifting
injury that gave him severe pain at the belt line and
radiated down his right leg. He sought treatment at his
local chiropractor, local doctor and several orthopedic
surgeons. An x-ray of the lumbosacral spine revealed minimal
bone spurring throughout the lumbar spine that was compatible
with the veteran's age. No specific pathology was
identified. The diagnosis was a lumbar back strain. The
examiner stated that the veteran's lumbar back strain was
less likely than not related to the veteran's back pain that
he experienced during military service.
In a January 2006 letter, Dr. Konopka, after a review of the
veteran's medical records, noted that the veteran received
treatment for a sore back and muscle spasms while on active
duty in February 1963 and March 1965. After reviewing the
May 2002 VA examination, Dr. Konopka stated that while the VA
examiner diagnosed the veteran with a lumbar strain, the
physical examination did not include point tenderness or
diffuse spasm and tenderness in the lumbar region which are
usually included with lumbar strains. While muscle strains
usually occur with a sudden great force on the back such as
lifting and sudden twisting, the veteran had not expressed an
acute trauma or injury. He noted that muscle strains
typically resolved in four to six weeks and were usually not
chronic in nature. Dr. Konopka concluded that based on the
veteran's history of low back problems in the military, it
was likely that the current condition with the veteran's low
back may have been influenced from his past medical history.
The Social Security Administration determined that the
veteran was entitled to Disability Insurance Benefits as a
result of job related back injury that he suffered in
December 1999.
Analysis
The record documents a current low back disability as the
veteran has a lumbar back strain. The veteran's service
medical records are significant for complaints of pain in the
lower back for which he received treatment. Therefore, the
element of an in-service injury is satisfied. The remaining
question is whether the current low back disability is the
result of an injury or disability while in service. As
noted, there are conflicting medical opinions on this
question.
In a January 2001 letter, Dr. Konopka stated that due to the
veteran's long term history of low back pain and injuries,
there was a strong possibility that his prior health history
contributed to the current health status of his low back. In
a January 2006 letter, Dr. Konopka stated that it was likely
that the current condition with the veteran's low back may
have been influenced from his past medical history.
Conversely, the May 2002 VA examiner stated that the
veteran's lumbar back strain was less likely than not related
to the veteran's back pain that he experienced during
military service.
While the January 2001 and January 2006 opinions of Dr.
Konopka suggest a link between the veteran's current low back
disability and his injury in service, Dr. Konopka's opinion
are simply too speculative to grant service connection.
Specifically, in the January 2006 letter Dr. Konopka stated
that "the veteran's low back may have been influenced from
his past medical history." There is no explanation of
"past medical history."
In Obert v. Brown, the Court held that a medical opinion
expressed in terms of "may," also implies "may or may not"
and is too speculative to establish a plausible claim.
Bostain v. West, 11 Vet. App. 11 Vet. App. 124 (1998); Obert
v. Brown, 5 Vet. App. 30 (1993).
The Board may favor the opinion of one competent medical
professional over that of another so long as an adequate
statement of reasons and bases is provided. See Owens v.
Brown, 7 Vet. App. 429, 433 (1995). Additionally, in
determining whether documents submitted by a veteran are
credible, the Board may consider internal consistency, facial
plausibility, and consistency with other evidence submitted
on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498,
511 (1995). Also, the Board has "the authority to discount
the weight and probative value of evidence in light of its
inherent characteristics in its relationship to other items
of evidence." Madden v. Brown, 125 F.3d 1447, 1481 (Fed.
Cir. 1997).
In January 2006, Dr. Konopka commented that while muscle
strains usually occur with a sudden great force on the back
such as lifting and sudden twisting, the veteran had not
expressed an acute trauma or injury. This comment, however,
is inconsistent with his January 2000 opinion that the
veteran's 1999 injury was a bending and twisting injury when
the veteran lifted a 100 lb bucket. As Dr. Konopka's January
2006 opinion directly contradicts his previous opinion, the
Board finds it not credible and of little probative value.
Furthermore, multiple other private medical records including
the April 2001 attending physician's statement of Dr.
Konopka, attributed the veteran's current low back disability
to the when the veteran initially injured his back in a work
related injury in December 1999.
The May 2002 VA examiner had the benefit of a review of the
veteran's service medical records, and provided a more
detailed opinion than the January 2001 and January 2006
opinions. The May 2002 VA examiner also addressed the timing
of the veteran's symptoms and provided a thorough rationale
for his conclusions. For these reasons the Board finds the
May 2002 VA examiner's opinion to be the most probative.
The Board notes the veteran's contentions concerning his
current back disability and its relationship to his service.
However, the veteran cannot establish a service connection
claim on the basis of his assertions, alone. While the Board
does not doubt the sincerity of the veteran's belief that his
current low back disability is associated with military
service, this claim turns on a medical matter-the
relationship between current disability and service. As a
lay person, the veteran can testify to his complaints, the
period of time he has experienced problems, and treatment he
has received; however, he is not competent to render an
opinion on matters of medical causation. Questions of
medical diagnosis and causation are within the province of
medical professionals. See Jones v. Brown, 7 Vet. App. 134,
137-38 (1994). As a layperson without the appropriate
medical training or expertise, the veteran simply is not
competent to render a probative (i.e., persuasive) opinion on
such a medical matter. See Bostain v. West, 11 Vet. App.
124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App.
492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186
(1997). Thus, while the Board has considered the veteran's
lay assertions, they do not outweigh the probative medical
evidence of record, which does not relate the veteran's
current back disability to service. A competent medical
expert makes this opinion and the Board is not free to
substitute its own judgment for that of such an expert. See
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
Additionally, as an April 2001 treatment note diagnosed the
veteran with a lumbar strain with underlying degenerative
disc disease, service connection may be granted if manifested
to a compensable degree within one year of separation from
service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§
3.307, 3.309. There are no records that show degenerative
disc disease in service or within one year of separation from
service.
The preponderance of the evidence is against a finding that
current degenerative disc disease of the low back is related
to his service, or that it became manifest within a year of
his discharge from active service. The first indication of
degenerative changes in the lumbar spine was in April 2001,
approximately 35 years after the veteran's last year of
service.
As the record does not show that the veteran had degenerative
disc disease to a compensable degree within one year of his
discharge from active duty, the weight of the evidence is
also against presumptive service connection. 38 U.S.C.A.
§§ 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309.
Because the most probative opinion is against a link between
the current disability and service, the preponderance of the
evidence is against the claim. As such, the benefit of the
doubt rule is not for application and, the claim is denied.
See 38 U.S.C.A. § 5107(b).
ORDER
Entitlement to service connection for lumbar strain is
denied.
____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Important Notice: Attached to this decision is a VA Form
that provides information concerning your rights to appeal
our decision. Due to recent changes in the law, some of the
information contained in the attached notice of appellate
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pay attorneys and agents to represent you. Some additional
information follows that summarizes the current law. To the
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following information:
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notice of disagreement has been filed with respect to your
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or after June 20, 2007. See Veterans Benefits, Health Care,
and Information Technology Act of 2006, Pub. L. No. 109-461,
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